85R6449 CBH-F
By: Hancock S.B. No. 1004
A BILL TO BE ENTITLED
AN ACT
relating to the deployment of network nodes in public
rights-of-way; authorizing fees.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle A, Title 9, Local Government Code, is
amended by adding Chapter 284 to read as follows:
CHAPTER 284. DEPLOYMENT OF NETWORK NODES IN PUBLIC RIGHTS-OF-WAY
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 284.001. FINDINGS AND POLICY. (a) The legislature
finds that:
(1) the design, engineering, permitting,
construction, modification, maintenance, and operation of network
nodes are instrumental to increasing access to advanced technology
and information for the citizens of this state;
(2) this state has delegated to each municipality the
fiduciary duty, as a trustee, to manage the public rights-of-way
for the health, safety, and welfare of the public, subject to state
law;
(3) network nodes often may be deployed most
effectively in the public rights-of-way;
(4) network providers' access to public rights-of-way
and the ability to attach network nodes to poles and structures in
those public rights-of-way allow network providers to densify their
networks and provide next-generation services;
(5) expeditious processes and reasonable and
nondiscriminatory compensation for use of the public rights-of-way
for network node deployments are essential to the construction and
operation of robust broadband communications networks;
(6) network nodes help ensure that this state remains
competitive in the global economy;
(7) the timely permitting of network nodes in public
rights-of-way is a matter of statewide concern and interest; and
(8) requirements of this chapter regarding fees,
charges, rates, and public rights-of-way management, when
considered with fees charged to other public rights-of-way users
under this code, are fair and reasonable and in compliance with 47
U.S.C. Section 253.
(b) It is the policy of this state to promote the adoption of
and encourage competition in the provision of telecommunications
services, including wireless services, by reducing the barriers to
entry for providers of services so that the number and types of
services offered by providers continue to increase through
competition.
(c) It is the policy of this state that municipalities:
(1) retain the authority to manage the public
rights-of-way to ensure the health, safety, and welfare of the
public; and
(2) receive from telecommunications providers,
including network providers, fair and reasonable compensation for
use of the public rights-of-way.
Sec. 284.002. DEFINITIONS. In this chapter:
(1) "Antenna" means communications equipment that
transmits or receives electromagnetic radio frequency signals.
(2) "Applicable codes" means:
(A) uniform building, fire, electrical,
plumbing, or mechanical codes adopted by a recognized national code
organization; and
(B) local amendments to those codes enacted
solely to address imminent threats of destruction of property or
injury to persons to the extent not inconsistent with this chapter.
(3) "Collocate" and "collocation" mean the
installation, mounting, maintenance, modification, operation, or
replacement of network nodes in a public right-of-way on or
adjacent to an existing pole with the express, discretionary, and
written permission of the pole's owner.
(4) "Fee" means a one-time cost-recovery charge for
services performed. The term includes a charge for reviewing and
processing an application for a permit.
(5) "Law" means common law or a federal, state, or
local law, statute, code, rule, regulation, order, or ordinance.
(6) "Municipal pole" means:
(A) a pole, other than a municipally owned
utility pole, owned or operated by a municipality and located in a
public right-of-way, including a pole that supports lighting or
traffic control functions or a structure for signage; and
(B) a pole or similar structure owned or operated
by a municipality, located in a public right-of-way, and supporting
only network nodes.
(7) "Municipally owned utility pole" means a utility
pole owned or operated by a municipally owned utility, as defined by
Section 11.003, Utilities Code, and located in a public
right-of-way.
(8) "Network node" means equipment at a fixed location
that enables wireless communications between user equipment and a
communications network. The term:
(A) includes:
(i) equipment associated with wireless
communications;
(ii) a radio transceiver, an antenna, a
battery-only backup power supply, and comparable equipment,
regardless of technological configuration; and
(iii) coaxial or fiber-optic cable
necessary to serve the location, including such cable connecting
the network node to the fiber network at a length not to exceed 528
feet; and
(B) does not include:
(i) an electric generator; or
(ii) a pole.
(9) "Network provider" means:
(A) a person granted a certificate of convenience
and necessity, certificate of authority, or service provider
certificate of authority by the Public Utility Commission of Texas
to provide telecommunications service in this state; and
(B) a person authorized and licensed by the
Federal Communications Commission to provide services classified
as "mobile services" by 47 C.F.R. Section 20.7.
(10) "Node support pole" means a pole installed by a
network provider for the primary purpose of supporting a network
node.
(11) "Permit" means a written authorization required
from a municipality before a network provider may perform an action
or initiate, continue, or complete a project over which the
municipality has regulatory authority.
(12) "Pole" means a municipal pole, municipally owned
utility pole, node support pole, or utility pole.
(13) "Public right-of-way" means the area on, below,
or above a public roadway, highway, street, public sidewalk, alley,
waterway, or utility easement in which the municipality has an
interest. The term does not include the airwaves above a public
right-of-way with regard to wireless telecommunications.
(14) "Public right-of-way rate" means an annual rental
charge paid by a network operator to a municipality for the use of a
public right-of-way in the municipality.
(15) "Utility pole" means a pole or similar structure
that supports a pole attachment, as defined by Section 252.001,
Utilities Code, and that provides:
(A) electric distribution with a voltage rating
of not more than 34.5 kilovolts; or
(B) services of a telecommunications utility, as
defined by Section 51.002, Utilities Code.
Sec. 284.003. LIMITATION ON SIZE OF NETWORK NODES. (a)
Except as provided by Section 284.108, a network node to which this
chapter applies must conform to the following conditions:
(1) each antenna that does not have exposed elements
and is attached to an existing structure:
(A) must be located inside an enclosure of not
more than six cubic feet in volume;
(B) may not exceed a height of three feet above
the existing structure; and
(C) may not protrude from the outer circumference
of the existing structure by more than two feet;
(2) if an antenna has exposed elements and is attached
to an existing structure, the antenna and all of the antenna's
exposed elements:
(A) must fit within an imaginary enclosure of not
more than six cubic feet;
(B) may not exceed a height of three feet above
the existing structure; and
(C) may not protrude from the outer circumference
of the existing structure by more than two feet;
(3) the cumulative size of other wireless equipment
associated with the network node attached to an existing structure
may not:
(A) be more than 28 cubic feet in volume;
(B) exceed a height of three feet above the
existing structure; or
(C) protrude from the outer circumference of the
existing structure by more than two feet;
(4) ground-based enclosures may not be higher than
four feet from grade, wider than four feet, or deeper than four
feet; and
(5) pole-mounted enclosures may not be taller than
five feet.
(b) The following types of associated ancillary equipment
are not included in the calculation of equipment volume under
Subsection (a):
(1) electric meters;
(2) concealment elements;
(3) telecommunications demarcation boxes;
(4) grounding equipment;
(5) power transfer switches;
(6) cut-off switches; and
(7) vertical cable runs for the connection of power
and other services.
(c) Equipment attached to node support poles may not
protrude from the outer circumference of the node support pole by
more than three feet.
(d) Equipment attached to a utility pole must be installed
in accordance with the National Electric Safety Code and the
utility pole owner's construction standards.
SUBCHAPTER B. USE OF PUBLIC RIGHTS-OF-WAY
Sec. 284.051. APPLICABILITY OF SUBCHAPTER. (a) This
chapter applies only to activities of a network provider
constructing, operating, and maintaining a network node in a public
right-of-way and municipal authority in relation to those
activities.
(b) Use of a public right-of-way for other
telecommunications facilities installed by a network provider is
governed by Chapter 283.
Sec. 284.052. EXCLUSIVE USE PROHIBITED. A municipality may
not enter into an exclusive arrangement with any person for use of
the public rights-of-way for the construction, operation,
marketing, or maintenance of network nodes or node support poles.
Sec. 284.053. PUBLIC RIGHT-OF-WAY RATE OR FEE FOR USE OF
PUBLIC RIGHTS-OF-WAY. (a) A public right-of-way rate or fee for
use of the public rights-of-way may not exceed an annual amount
equal to $1,000 multiplied by the number of node support poles and
utility poles, other than municipally owned utility poles, inside
the municipality's corporate boundaries on which the network
provider has installed a network node.
(b) At the municipality's discretion, the municipality may
charge a network provider a lower rate or fee if the lower rate or
fee is:
(1) nondiscriminatory;
(2) related to the use of the public rights-of-way;
and
(3) not a prohibited gift of public property.
Sec. 284.054. PUBLIC RIGHT-OF-WAY RATE OR FEE ADJUSTMENT.
A municipality shall adjust the amount of the public right-of-way
rate or fee annually to reflect the previous year's annual rate of
inflation as determined by the Public Utility Commission of Texas.
The new rate or fee takes effect for the first payment due to the
municipality on or after the 60th day after the date the commission
makes the determination.
Sec. 284.055. PUBLIC RIGHT-OF-WAY RATE OR FEE APPLICABLE TO
TELECOMMUNICATIONS NETWORK. (a) The right-of-way fee provisions
of Subchapter B, Chapter 283, apply to the use of a public
right-of-way for telecommunications network facilities, other than
network nodes, installed by a network provider.
(b) For the purposes of calculating the right-of-way fee
under Subchapter B, Chapter 283:
(1) each network node is considered to be an end-use
customer termination point as specified in the definition of
"access line" in Section 283.002(1)(A)(ii); and
(2) the exception provided by Section 283.002(1)(B)
does not apply.
(c) Notwithstanding Section 283.056, a network provider is
responsible for paying both the public right-of-way rate or fee
required by this chapter and any applicable right-of-way fee
required by Chapter 283.
SUBCHAPTER C. ACCESS AND APPROVALS
Sec. 284.101. RIGHT OF ACCESS TO PUBLIC RIGHTS-OF-WAY. (a)
Except as specifically provided by this chapter and, subject to the
requirements of this chapter and the approval of a permit
application, if required, a network provider is entitled, as a
permitted use that is not subject to zoning review or similar
approval, and is not subject to further land use approval in an area
that is not zoned, to do the following in the public rights-of-way:
(1) construct, modify, maintain, and operate a network
node;
(2) construct, modify, maintain, and operate a utility
pole or network support pole; and
(3) collocate on a pole with the discretionary,
nondiscriminatory, and express written consent of the pole's owner.
(b) A network provider taking an action authorized by
Subsection (a) is subject to applicable codes.
Sec. 284.102. GENERAL CONSTRUCTION AND MAINTENANCE
REQUIREMENTS. A network provider shall construct and maintain
structures and facilities described by Section 284.101 in a manner
that does not:
(1) obstruct, impede, or hinder the usual travel or
public safety on a public right-of-way;
(2) obstruct the legal use of a public right-of-way by
other utility providers;
(3) violate applicable codes;
(4) violate or conflict with the municipality's
publicly disclosed public rights-of-way design specifications; or
(5) violate the federal Americans with Disabilities
Act of 1990 (42 U.S.C. Section 12101 et seq.).
Sec. 284.103. GENERAL LIMITATION ON PLACEMENT OF POLES. A
network provider shall ensure that each new, modified, or
replacement utility pole or node support pole installed in a public
right-of-way in relation to which the network provider received
approval of a permit application:
(1) does not exceed the greater of:
(A) 10 feet in height above the tallest existing
utility pole located within 500 linear feet of the new pole in the
same public right-of-way; or
(B) 50 feet above ground level; and
(2) is spaced at least 300 linear feet from the nearest
existing pole that is capable of supporting network nodes and is
located in a public right-of-way.
Sec. 284.104. INSTALLATION IN RESIDENTIAL AREAS. (a) A
network provider may not install a new node support pole in a
public right-of-way without the municipality's discretionary,
nondiscriminatory, and written consent if the public right-of-way
is adjacent to a street or thoroughfare:
(1) that is not more than 50 feet wide; and
(2) both sides of which are adjacent to single-family
residential lots or other multifamily residences.
(b) In addition to the requirement prescribed by Subsection
(a), a network provider installing a network node or node support
pole in a public right-of-way described by Subsection (a) shall
comply with private deed restrictions and other private
restrictions in the area that apply to those facilities.
Sec. 284.105. EQUIPMENT CABINETS. A network provider shall
ensure that the vertical height of an equipment cabinet installed
as part of a network node does not exceed the height limitation
prescribed by Section 284.003, subject to approval of the pole's
owner if applicable.
Sec. 284.106. COMPLIANCE WITH UNDERGROUNDING REQUIREMENT.
(a) A network provider shall, in relation to installation for which
the municipality approved a permit application, comply with
nondiscriminatory undergrounding requirements, including
municipal ordinances, zoning regulations, state law, private deed
restrictions, and other public or private restrictions, that
prohibit installing aboveground structures in a public
right-of-way without first obtaining zoning or land use approval.
(b) A requirement or restriction described by Subsection
(a) may not be interpreted to prohibit a network provider from
replacing an existing structure.
Sec. 284.107. DESIGN MANUAL. (a) A municipality may adopt
a design manual for the installation and construction of network
nodes and new node support poles in the public rights-of-way that
includes additional installation and construction details that do
not conflict with this chapter.
(b) A network provider shall comply with the design manual
in relation to work for which the municipality approved a permit
application.
Sec. 284.108. EXCEPTIONS. Subject to Subchapter D, a
network provider may construct, modify, or maintain in a public
right-of-way a network node or network support pole that exceeds
the height or distance limitations prescribed by this chapter only
if the municipality approves the construction, modification, or
maintenance subject to all applicable zoning or land use
regulations and applicable codes.
Sec. 284.109. DISCRIMINATION PROHIBITED. A municipality,
in the exercise of the municipality's administrative and regulatory
authority related to the management of and access to the public
rights-of-way, must be competitively neutral with regard to other
users of the public rights-of-way.
SUBCHAPTER D. APPLICATIONS AND PERMITS
Sec. 284.151. PROHIBITION OF CERTAIN MUNICIPAL ACTIONS.
(a) Except as otherwise provided by this chapter, a municipality
may not prohibit, regulate, or charge for the installation or
collocation of network nodes in a public right-of-way.
(b) A municipality may not directly or indirectly require,
as a condition for issuing a permit required under this chapter,
that the applicant perform services unrelated to the installation
or collocation for which the permit is sought, including in-kind
contributions such as reserving fiber, conduit, or pole space for
the municipality.
(c) A municipality may not institute an express or de facto
moratorium on:
(1) filing, receiving, or processing applications; or
(2) issuing permits or other approvals, if any, for
the installation of network nodes or node support poles.
Sec. 284.152. AUTHORITY TO REQUIRE PERMIT. (a) A
municipality may require a network provider to obtain one or more
permits to install a network node or node support pole in a public
right-of-way if the permit:
(1) is of general applicability to users of the public
rights-of-way; and
(2) does not apply exclusively to network nodes.
(b) A network provider that wants to install or collocate
multiple network nodes inside the territorial jurisdiction of a
single municipality is entitled to file a consolidated permit
application with the municipality for not more than 30 network
nodes and receive a single permit for the installation or
collocation of those network nodes.
Sec. 284.153. GENERAL PROCESS RELATING TO PERMIT
APPLICATION. (a) Except as otherwise provided by this section, a
municipality may not require an applicant to provide more
information to obtain the permit than a telecommunications utility
that is not a network provider is required to provide.
(b) As part of the standard form for a permit application, a
municipality may require the applicant to include applicable
construction and engineering drawings and information to confirm
that the applicant will comply with the municipality's publicly
disclosed public rights-of-way design specifications and
applicable codes.
(c) A municipality may require an applicant to provide:
(1) information reasonably related to the provider's
use of the public rights-of-way under this chapter:
(A) to ensure compliance with this chapter; and
(B) as reasonably necessary to demonstrate that
the proposed network node will comply with applicable regulations
of the Federal Communications Commission; and
(2) reasonable evidence that the proposed network node
will be placed into active commercial service by or for a provider
of retail telecommunications service immediately after the date the
construction and final testing of the network node is completed.
Sec. 284.154. MUNICIPAL REVIEW PROCESS. (a) A
municipality shall process each permit application on a
nondiscriminatory basis.
(b) Not later than the 30th day after the date the
municipality receives an application, the municipality shall
determine whether the application is complete and notify the
applicant of that determination. If the municipality determines
that the application is not complete, the municipality shall
specifically identify the missing information.
(c) A municipality shall approve an application that does
not require zoning or land use approval under this chapter unless
the application or the corresponding work to be performed under the
permit does not comply with the municipality's applicable codes.
(d) A municipality must approve or deny a complete
application for a new node support pole not later than the 150th day
after the date the municipality receives the application. The
municipality must approve or deny all other complete applications
not later than the 90th day after the date the municipality receives
the application.
(e) A municipality that denies a complete application must
document the basis for the denial, including the specific
applicable code provisions on which the denial was based. The
municipality shall send the documentation to the applicant on or
before the date the authority denies the application.
(f) Not later than the 30th day after the date the
municipality denies the application, the applicant may cure the
deficiencies identified in the denial documentation and resubmit
the application without paying an additional application fee, other
than a fee for actual costs incurred by the municipality.
Notwithstanding Subsection (d), the municipality shall approve or
deny the revised application not later than the 45th day after the
date the municipality receives the revised application. The
municipality's review of the revised application is limited to the
deficiencies cited in the denial documentation.
Sec. 284.155. TIME OF INSTALLATION. (a) A network provider
shall begin the installation for which a permit is granted not later
than the 90th day after the date the permit is approved and shall
complete the installation not later than the 180th day after the
date the installation begins.
(b) Notwithstanding Subsection (a), the municipality may
place a longer time limit on completion or grant reasonable
extensions of time as requested by the network provider.
Sec. 284.156. APPLICATION FEES. (a) A municipality may
charge an application fee for a permit only if the municipality
requires the payment of the fee for similar types of commercial
development inside the municipality's territorial jurisdiction
other than a type for which application or permit fees are not
allowed by law.
(b) The amount of an application fee charged by a
municipality must be:
(1) based on the actual, direct, and reasonable costs
the municipality determines are incurred in granting or processing
an application; and
(2) reasonably related in time to the time the costs of
granting or processing an application are incurred.
(c) In determining for purposes of Subsection (b) the amount
of the actual, direct, and reasonable costs, the municipality:
(1) may include reasonable and direct reimbursement of
costs incurred by the municipality in relation to third-party legal
or engineering review of an application, including reasonable and
necessary travel expenses in this state; and
(2) may not include direct payments or reimbursement
of third-party public right-of-way rates or fees charged on a
contingency basis or under a result-based arrangement.
(d) Payment by a network provider of applicable application
fees under this chapter does not affect the provisions of Section
283.056 that prohibit a municipality from requiring the provider to
pay application or permit fees in relation to telecommunications
facilities, other than network nodes, that the provider installs in
the public rights-of-way.
Sec. 284.157. CERTAIN WORK EXEMPTED. (a) A municipality
may not require a network provider to submit an application for:
(1) routine maintenance that does not require
excavation or closing of sidewalks or vehicular lanes in a public
right-of-way; or
(2) replacing or upgrading a network node or pole with
a node or pole that is substantially similar in size or smaller and
that does not require excavation or closing of sidewalks or
vehicular lanes in a public right-of-way.
(b) For purposes of Subsection (a)(2):
(1) a pole or network node is considered to be
"substantially similar" if:
(A) the new or upgraded pole will not be more than
10 percent higher than the existing pole, provided that the
increase may not result in the pole exceeding the applicable height
limitations prescribed by Section 284.103; and
(B) the new or upgraded network node, including
the antenna or other equipment element, will not be more than 10
percent larger than the existing node, provided that the increase
may not result in the node exceeding the size limitations provided
by Section 284.003;
(2) the replacement or upgrade does not include
replacement of an existing node support pole; and
(3) the replacement or upgrade does not defeat
existing concealment elements of a node support pole.
(c) The determination under Subsection (b)(1) of whether a
replacement or upgrade is substantially similar is made by
measuring from the dimensions of the network node or node support
pole as approved by the municipality.
(d) Notwithstanding Subsection (a):
(1) a municipality may require advance notice of work
described by that subsection; and
(2) a network provider may replace or upgrade a pole
only with the approval of the pole's owner.
SUBCHAPTER E. ACCESS TO AUTHORITY STRUCTURES
Sec. 284.201. USE NOT MANDATED. This chapter may not be
construed to require that a municipality allow collocation of
network nodes on a municipal pole or a municipally owned utility
pole.
Sec. 284.202. NONDISCRIMINATORY USE OF MUNICIPAL POLES. A
municipality that chooses to allow collocation of network nodes on
municipal poles must comply with Section 54.204, Utilities Code.
SUBCHAPTER F. GENERAL CONDITIONS OF ACCESS
Sec. 284.251. LOCAL POLICE-POWER-BASED REGULATIONS. (a)
Subject to this chapter and applicable federal and state law, a
municipality may continue to exercise zoning, land use, planning,
and permitting authority in the municipality's boundaries,
including with respect to utility poles.
(b) A municipality may exercise that authority to impose
police-power-based regulations for the management of the public
rights-of-way that apply to all persons subject to the
municipality.
(c) A municipality may impose police-power-based
regulations in the management of the activities of network
providers in the public rights-of-way only to the extent that the
regulations are reasonably necessary to protect the health, safety,
and welfare of the public.
Sec. 284.252. INDEMNIFICATION. The indemnification
provisions of Sections 283.057(a) and (b) apply to a network
provider accessing a public right-of-way under this chapter.
Sec. 284.253. RELOCATION. A network provider shall
relocate or adjust network nodes in a timely manner and without cost
to the municipality if the municipality requires the relocation or
adjustment to accommodate public improvements constructed on
behalf of the municipality in a public right-of-way.
Sec. 284.254. INTERFERENCE. (a) A network provider shall
operate all network nodes in accordance with all applicable laws,
including regulations adopted by the Federal Communications
Commission.
(b) A network provider shall ensure that the operation of a
network node does not cause any harmful radio frequency
interference to a Federal Communications Commission-authorized
mobile telecommunications operation of the municipality operating
at the time the network node was initially installed or
constructed. On written notice, a network provider shall take all
steps reasonably necessary to remedy any harmful interference.
SECTION 2. (a) In this section, "collocation," "fee,"
"network node," "node support pole," "public right-of-way," and
"public right-of-way rate" have the meanings assigned by Section
284.002, Local Government Code, as added by this Act.
(b) Not later than the first anniversary of the effective
date of this Act, each municipality that charges a public
right-of-way rate or fee to construct, install, mount, maintain,
modify, operate, or replace a network node or node support pole in a
public right-of-way, including collocation in a public
right-of-way, shall:
(1) determine whether the rate or fee complies with
the requirements prescribed by Section 284.053, Local Government
Code, as added by this Act; and
(2) if the rate or fee does not comply, amend the rate
or fee for all persons in any manner necessary for compliance.
SECTION 3. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2017.